Challenging An RTB Decision – Part 1: What to Do When You Receive an Unfavourable RTB Decision

Have you received a Residential Tenancy Branch (“RTB”) decision that is not in your favour and want to know what to do next?

Maybe you served your tenant with a one-month notice to end tenancy for breach of a material term of the tenancy agreement and the RTB found that, though there may have been a breach, it was not of a material term, therefore the notice to end tenancy was dismissed. Maybe your landlord did not properly serve you with a 10-day notice for unpaid rent or utilities, yet the RTB provided them with an order of possession? What are your options now?

Can I Get a Road Map Please?

The easiest thing to do when you receive a decision that is not in your favour is to abide by the decision. However, if you consider the decision made by the arbitrator to be unreasonable or unfair, you can challenge the decision in two ways.

The first way to challenge an RTB decision is by commencing an Application for Review Consideration with the RTB. The second way to challenge an RTB decision is by commencing an Application for Judicial Review with the Supreme Court of British Columbia. In the event that you have decided to challenge an RTB decision, it is recommended that you first commence an Application for Review Consideration (provided that one of the grounds for doing so applies to your case). If unsuccessful with your Application for Review Consideration, you can then escalate the matter by commencing a Judicial Review of the RTB decision with the Supreme Court of British Columbia.

Below I have set out the circumstances that must apply in order to commence an Application for Review Consideration.

Applying for Review Consideration

In limited circumstances, a landlord or a tenant may request a review of a decision or order. This is not a chance to reargue the case or review evidence that should have been presented at the original hearing. Instead, it’s an opportunity for a landlord or tenant to ask that an arbitrator take a second look at a decision or order on the following limited grounds:

New evidence:

There is new and relevant evidence that was not available at the time of the original hearing. You must include evidence with your application and you must explain why it is relevant, whether it proves or disproves evidence already presented, and why it was not available at the time of the original hearing.

Unable to attend:

You can prove that you were unable to attend the original hearing due to unexpected circumstances beyond your control.

Fraud:

There is evidence that the original decision was obtained by fraud. You must submit evidence to prove each of the following:

1. Information presented at the original hearing was false;
2. The person submitting the information knew that it was false; and
3. The false information was used to get the outcome desired by the person who submitted it.

How Much is This Going to Cost Me?

There is a $50.00 fee to apply for a Review Consideration.

The Clock is Running

The deadline to commence an application for review consideration depends on the subject matter of the decision. For the following types of decisions, there is a two-day deadline from the time you receive the decision:

• unreasonable withholding of consent to assign or sublet;
• eviction for non-payment of rent;
• order of possession for the tenant or the landlord; and
• application to end a tenancy early.

For the following types of decisions, there is a five-day deadline from the time you receive the decision:

• repairs or maintenance;
• services or facilities; and
• any eviction notice other than one for non-payment of rent.

For all other types of decisions, there is a 15-day deadline from the time you receive the decision.

While this first article discusses the RTB internal review process, in part two, we will review the Judicial Review process.

For further assistance with residential tenancy matters, please contact our group.